Rush v. City of Greenville
| Citation | 246 S.C. 268,143 S.E.2d 527 |
| Decision Date | 20 July 1965 |
| Docket Number | No. 18382,18382 |
| Parties | S. C. RUSH, Respondent, v. CITY OF GREENVILLE and Members of Greenville City Council, Appellants. |
| Court | United States State Supreme Court of South Carolina |
W. H. Arnold, Greenville, for appellant.
Sol E. Abrams, Greenville, for respondents.
S. C. Rush, the respondent herein, on August 1, 1962, purchased from W. R. Lupo a lot of land in the City of Greenville, lying between Augusta Road and the Old Augusta Road. In the deed of conveyance the property is described according to a plat thereof made in June, 1962. The frontage of this lot on Augusta Road is 103.8 feet. The side lines of the main portion of this lot, which are approximately parallel, extend back from Augusta Road in a westerly direction for a distance of approximately 195 feet on the northern side thereof and 210 feet on the southern side. There is a small strip of land referred to in the record as an appendix or 'tail' which extends from the main portion of the said lot to Old Augusta Road, having a frontage thereon of 22.7 feet. This strip is approximately 102 feet in length and the northern line thereof is an extension of the northern boundary line of the main lot.
When the respondent purchased the aforesaid property, the portion fronting on Augusta Road was zoned 'E-Local Commercial' to a depth of approximately 145 feet along the northern boundary thereof and 160 feet along the southern boundary. A commercial or business establishment could be constructed upon this portion of the lot. A strip across the back of the main lot about 50 feet in depth and 100 feet in width, together with the appendix or 'tail', a strip 22.7 feet by 102 feet was zoned 'A-1 Single Family Residential'.
It appears that the respondent petitioned the Planning and Zoning Commission and the City Council of Greenville to change so much of the aforesaid lot as was zoned 'A-1 Single Family Residential' to 'E-Local Commercial'. This request was granted as to the strip across the back of the main lot about 50 feet in depth and 100 feet in width, but was denied as to that portion of the property which fronts on Old Augusta Road, which has heretofore been described as the appendix or 'tail'. The reason for the action of the City Council was as follows:
'(1) That the use of the property on Augusta Road for commercial purposes is consistent with the character of that area and the suggested increase in depth will not affect the residential area to the west.
'(2) That the extension of a commercial district along Old Augusta Road is undesirable and that to permit this strip to become an entry to the proposed business development would be detrimental to the residential neighborhood of Old Augusta Road.'
The respondent instituted this action on July 9, 1963, and by his complaint alleged that he was the owner of the lot of land hereinbefore described and that he had made a proper request to the Planning and Zoning Commission and the City Council of Greenville to rezone the said property so that the entire lot could be used by him for commercial purposes. He alleges that on June 13, 1963, his lot was zoned 'E-Local Commercial' as requested but the portion fronting on Old Augusta Road 22.7 feet in width and having a depth of 102 feet was retained in the 'A-1 Single Family Residential' zone. He asserts that this action was arbitrary, unreasonable and in violation of the due process clauses of both the State and Federal Constitutions in that he has been denied the full right and enjoyment of his property to which he is entitled and that the aforesaid action amounted to a taking of his property without just compensation and without due process of law. He asks that the zoning ordinance, as it applied to the real estate owned by him fronting on Old Augusta Road, be declared null and void and that the court issue an order directing the City of Greenville to zone the small strip of land herein described as an 'E-Local Commercial' lot.
The City of Greenville, in its answer, admitted that the respondent was the owner of the property described in the complaint and alleged that he bought the small frontage of some 22.7 feet on Old Augusta Road knowing that it could not be used by him for either residential or business purposes. The other allegations of the complaint were denied.
Subsequent to the filing of the complaint and the answer in this case the respondent petitioned the Planning and Zoning Commission and the City Council of Greenville for a special permit to use the frontage of 22.7 feet on Old Augusta Road to a depth of some 102 feet in connection with the commercial purposes which he desired to adopt for his property fronting on Augusta Road and which had been zoned 'E-Local Commercial'. This request was denied and the reasons therefor are as follows:
'(1) The development of this strip of land, specifically 22.7 feet by 102 feet fronting on Old Augusta Road, for a parking area and driveway to a customer parking lot constitutes a further encroachment of business into a residential neighborhood and would be detrimental to the residences of the area.
'(2) The development of this strip as a driveway entrance and exit would be detrimental to the traffic safety of Old Augusta Road.
'(3) The development of the proposed driveway would increase the traffic volume and movement at this location, and would, thereby, constitute a hazard to the many children who travel this street to and from Blythe Elementary School and Hughes Junior High School.'
This second application of the respondent was not referred to in the pleadings in this case but evidence thereabout was introduced without objection and such was considered in the determination of this cause. Even though no issue was made in the pleadings concerning this application, consideration will be given to such in the disposition of this appeal.
This case was tried before the Honorable Frank Eppes, Resident Judge of the Thirteenth Circuit. The testimony was taken and a number of exhibits were offered in evidence. Thereafter, on May 6, 1964, the Trial Judge, by his order, held that the respondent was entitled to the relief sought and that the action of the City Council and the Planning and Zoning Commission, in refusing such, was arbitrary, unreasonable and in violation of the due process clauses of both the State and Federal Constitutions, and that the respondent had been deprived of the use of his property without just compensation. The Trial Judge ordered the lot fronting on Old Augusta Road to be zoned 'E-Local Commercial' and required the city to amend its ordinances accordingly. It is from this order that the City of Greenville prosecutes this appeal.
The respondent testified that he proposed to erect a commercial building upon the lot fronting on Augusta Road and such would have a width of 103.8 feet, running from property line to property line. The building would be set back 70 feet from Augusta Road and would have an approximate depth of 70 feet which would permit two row parking in the front and rear thereof. The respondent stated that it was his purpose to use the small strip of land which fronts on Old Augusta Road as an access way into the back parking area, it being necessary to have such because entrance could not be made thereto from Augusta Road. The respondent said that this small strip of land could not be used for residential purposes because it was not large enough square footage wise. The respondent testified that when the purchased the property in question the title thereto was examined by his attorney but he was not informed then as to what the zoning was on the lot. However, he did admit that he knew the front part was zoned 'E-Local Commercial' and was so told by the seller and, on cross-examination, he said he knew that under the zoning ordinance the property on Old Augusta Road in the rear of his Augusta Road property was residential. It was suggested to the respondent that his commercial building fronting on Augusta Road could be made deeper and not as wide and leave a twelve foot driveway either on the southern or northern side of the lot, thereby permitting entrance from Augusta Road for the purpose of parking in the rear thereof. He did not approve of this suggestion and answered that people who wanted to occupy a building such as his wanted frontage rather than depth.
The respondent called as a witness an experienced real estate dealer. This witness testified that the value of real estate is based largely on the use that could be made of it. He said that the value of the respondent's commercial property would be substantially depreciated if he could not use the small strip or 'tail' as an entrance to the rear thereof. On cross-examination he admitted that if the respondent intended to put a business on the property and wanted to use this small strip of land as an entrance to the rear thereof, he should have found out what the zoning was and the possibility of changing such.
The Assistant Director of the Planning and Zoning Commission of the City of Greenville testified as to the applications made by the respondent for rezoning of or for the commercial use of the strip of land fronting on Old Augusta Road and that such applications were denied for the reason 'to permit this parking lot to develop on this property would be a commercial encroachment into a substantial residential area along Old Augusta Road; and also that this parking lot would affect the traffic on Old Augusta Road, in that it would create a dangerous situation, because of the school children traveling this road, going to Blythe School and Hughes Junior High School in the area.'
The parties have stipulated that on May 7, 1964, the next day after the circuit order was filed in this case, the respondent and one Ernest E. Robinson applied to the City of Greenville to permit the property here involved to be used as a 'quick servicecarry out restaurant' and showed that the building...
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